How lawyer navigates sea of secrecy in bizarre case

Among the obstacles: responding to a filing he can't see and writing a brief with none of his notes at hand.

SAN FRANCISCO -- Oakland lawyer Jon Eisenberg calls the case of Al-Haramain Islamic Foundation v. George W. Bush the strangest he has ever handled. How strange? Eisenberg was required to write one of his briefs in a windowless government office, without notes or lawbooks, under the watchful eye of two federal security guards.

When he got hungry, one of the guards brought him a banana. And when he finished, a security official shredded all his drafts -- and even the banana peel, Eisenberg said.

The brief-writing session was just one facet of the extraordinary secrecy surrounding the Al-Haramain case, Eisenberg said. Al-Haramain is one of dozens of plaintiffs across the nation that have filed suit, claiming they were illegally spied on by the government as part of the war on terror.

In most of the cases, including Al-Haramain's, the government has contended that any disclosure about the surveillance program would reveal state secrets and has refused to say whether the plaintiffs were wire-tapped. It has then moved to dismiss the complaints.

But in the Al-Haramain case, the Treasury Department inadvertently disclosed National Security Agency call logs stamped "top secret" indicating that the charity and two of its attorneys had been surveilled. Last year, U.S. District Judge Garr King ruled that the logs -- referred to in the court papers as "The Document" -- gave the charity standing to sue in federal court.

Today, Eisenberg and Justice Department lawyer Thomas Bondy will each have 20 minutes to argue over King's decision before a three-judge panel of the U.S. 9th Circuit Court of Appeals. Although the argument will be conducted in public, much of the information in the case, including what was in "the Document," remains veiled in mystery.

Many of the government's motions have been filed under seal, and those lodged publicly contain gaps; one government brief reads: "REDACTED TEXT. PUBLIC TEXT CONTINUES ON PAGE 6."

Some of Eisenberg's briefs have been redacted as well, because they are considered too sensitive for the public to see. But although Justice Department lawyers can see Eisenberg's redactions, he isn't allowed to see theirs.

In the Al-Haramain case, Eisenberg has had to respond to a government filing he was not allowed to see.

Asked Monday if there was any way, under the government's interpretation of the law, that someone could contest the surveillance program, a senior Justice Department official replied, "In the current context, no."

Georgetown University constitutional law professor David Cole, who is not involved in this case but has represented individuals in similar situations, said the Al-Haramain case presented a daunting undertaking for a lawyer -- and a threat to the rule of law.

"The whole adversary system of American law is predicated on the notion that both sides get to see the facts and the law that is presented to the judge," Cole said. When one side cannot see all the material presented to the judges by the other side, the professor said, "it cuts out the heart of the adversarial system."

But Chapman University constitutional law professor John Eastman said these cases raised unusual problems because of their sensitive nature. "One thing that is at issue here," he said, "is: How do you secure classified information, including intelligence information during wartime, in a society that is normally, and otherwise, wide open?"

As he prepared for today's oral argument, Eisenberg also called the Al-Haramain case the most difficult of his 27-year legal career, which has included numerous arguments before the California Supreme Court. Eisenberg is the author of "The Right vs. the Right to Die," a nonfiction account of the Terri Schiavo case, in which he helped represent her husband, Michael Schiavo.

The Al-Haramain proceedings turned Kafkaesque in June, he said, when he was told he would have to write a brief in the government office.

The filing was in response to a Justice Department brief that was redacted, he said. In the public portion, a team of government lawyers asserted that the case should be dismissed because of the "state secrets" doctrine. They also contended that the call log does not prove that the plaintiffs were subjects of the NSA's warrantless wiretapping program.

Eisenberg vigorously disputed the public portion of the filing, saying that if the government prevailed, the case would "quietly die without a judicial determination of whether the president. . . has broken the law by conducting warrantless electronic surveillance in violation of the Foreign Intelligence Surveillance Act."